Judges question whether Lee family appeal ‘moot’
City prosecutors dropped criminal case regarding 1999 killing in October
Maryland appellate judges raised doubts in court Thursday about whether they had the authority to reinstate Adnan Syed’s decades-old murder conviction in Hae Min Lee’s death.
Appellate Court of Maryland judges Stuart R. Berger, Kathryn Graeff and Gregory Wells repeatedly asked attorneys representing Lee’s brother, Young Lee, why his appeal shouldn’t be dismissed considering city prosecutors dropped the criminal case against Syed in October.
“Why isn’t this case moot?” Berger asked. “Because there’s no underlying case left.”
Made famous by the hit podcast “Serial,” Syed’s legal saga seemed like it came to an end in September when Baltimore Circuit Judge Melissa Phinn overturned Syed’s conviction, citing prosecutors’ claims of unearthing new evidence about an “alternative suspect” in the 1999 killing, and released him from custody.
Young Lee, who lives in California, attended that Sept. 19 hearing via video and expressed frustration about the apparent about-face by the Baltimore State’s Attorney’s Office.
Young Lee, represented by attorney Steve Kelly, appealed Phinn’s ruling, arguing prosecutors failed to provide enough of a heads up to attend the hearing and to participate. Lee argued he and other crime victims should be able to challenge evidence, asking the court to order a do-over of the hearing where Syed’s conviction was thrown out.
Young Lee attended Thursday’s hearing, sitting silently beside a member of his attorneys’ law firm.
Pressed by Graeff in court for legal authority to support the claim that victims have a right to participate in court proceedings in that capacity, one of his lawyers, David Sanford, came up empty.
“I don’t have any case law for the support in Maryland,” Sanford said.
Police arrested Syed, then 17, in 1999 and charged him with murder in Hae Min
Lee’s death, presenting the theory that he strangled his high school ex because he was upset over their breakup. A jury found him guilty in 2000, and a judge sentenced him to life plus 30 years in prison.
In order for there to be a redo, the appeals court would have to reinstate the charges against Syed, making him guilty again, even if temporarily.
Out of prison for about five months, Syed recently started a job with Georgetown University, working as a program associate for the university’s Prisons and Justice Initiative. After the hearing Thursday, he told reporters he and his family wanted to be able to move on.
“It’s really hard for us. It’s hard for my dad, it’s hard for my mom, it’s hard for my younger brother. You know, and it’s just, it seems like our family, we just always go unnoticed. Every time we go to court we just always go unnoticed,” Syed said. “We definitely understand that Hae’s family has suffered so much, and they continue to suffer. It’s just that we suffer too. We just hope that the court today just takes notice of that.”
Syed’s lawyer, Erica Suter, argued the court should dismiss the appeal as moot because there is no longer a case against Syed. Even if Young Lee’s appeal wasn’t moot, Suter said, he does not have standing as a party under the law and would not be able to challenge evidence at a criminal proceeding.
“This court’s decision will neither bring back Hae Min Lee nor restore Adnan’s 23 and a half lost years, but what it can do is confirm that the lower court’s decision should stand,” Suter said after court, reading from a prepared statement.
While Maryland law provides that crime victims should be treated with “dignity, respect and sensitivity during all phases of the criminal justice process,” what Lee requested goes far beyond the scope of crime victims’ rights, Suter wrote in court filings, and
would effectively usurp prosecutors’ discretion — a pillar of the criminal legal system.
“Victims do not prosecute charges, they do not decide which witnesses to call, and they do not cross-examine those witnesses,” Suter wrote. “Giving Appellant what he wants will not just result
in the reimprisonment of Mr. Syed for a crime he did not commit, it will wreak havoc on our criminal justice system.”
Suter said it should be up to the legislature or the judiciary’s Rules Committee to consider the type of changes to victims rights law Young Lee’s appeal seeks.
Berger also wondered aloud why the appeals court should consider this issue instead of those bodies.
After court, Sanford said the hearing to vacate Syed’s conviction was illegal, saying Phinn neglected to outline a proper evidentiary basis for her ruling. The question of whether there was an evidentiary basis for Syed’s conviction being overturned is not up for appeal, only whether Young Lee got adequate notice and was afforded a right to participate.
“What we want on behalf of the family is the truth and what the public should want on behalf of the public is the truth and what Adnan Syed himself should want is a proper record to clear his name, if that’s the case,” Sanford told reporters. “Adnan Syed doesn’t have that today.”
Maryland law requires that prosecutors give reasonable notice about those types of hearings, and that the victim, at certain proceedings, be afforded the opportunity to speak if they want.
Prosecutors told Young Lee about the Monday hearing after a scheduling conference the Friday before — less than one full business day.
The Office of the Maryland Attorney General, which generally supports Lee’s appeal, wrote in its own filing that state law does not provide crime victims with the right to participate in a case by presenting evidence or arguing the law.
Young Lee had filed his appeal before prosecutors dropped the charges against Syed in October, asking the court to order a pause in all proceedings until the appeal worked itself out. But former Baltimore State’s Attorney Marilyn Mosby dismissed the case before a ruling was issued, something Sanford’s co-counsel, Kelly, called an “end run” to circumvent the appellate process.
Judges seemed to sympathize with that point in court Thursday.
“Is that appropriate? For the court to accept that nol pros under those circumstances where it thwarts the victim’s rights to be heard [on appeal]?” Graeff asked Suter.
A nolle prosequi, or nol pros for short, is a legal Latin term for the action prosecutors take when they dismiss criminal charges.
Under the statute that allowed Syed’s release, Maryland law requires prosecutors to make a decision about whether to dismiss a defendant’s charges within 30 days of a conviction being overturned. When Mosby dismissed the charges on Oct. 11, she had eight more days to make a decision.
Berger and Graeff asked Assistant Attorney General Daniel Jawor whether the prosecutors were right to do that with a pending appeal.
Jawor told the judges that Mosby’s office acted in accordance with the law when deciding to dismiss the charges.
Even if the appeals court dismisses Young Lee’s appeal, it could issue a ruling clarifying victims rights in hearings over whether to vacate convictions.
The appellate court typically takes weeks if not months to issue a ruling.